Excerpt:..... 2. a subsidiary question is whether the two widows, mother-in-law and daughter-in-law enjoyed the property in such a manner and with such intention as to have prescribed for a half share each. the preamble to section 10(which has been described as placitum 1) states, the author states an exception to what has been said by him respecting the succession of the son, the widow and other heirs, as well as the reunited parcener. as far as possible, deducing by analogy a class of exceptions not clearly covered by the words should be avoided. he introduced that as a good and reasonable solution of the problem relating to the recovery of normal health by the disqualified heir. ' if the exclusion is not based on original sin or subsequent incapacity to offer oblation and the like, the suggestion..........864 which again was a case relating to the insanity of the same individual; it was held that the right to property existed although the right to its enjoyment was unenforceable. princep, j., was of opinion that the earlier decisions in viii calcutta were not good law. these are the calcutta decisions, in allahabad there is a direct decision in tirbeni sahai v. muhammad umar i.l.r. (1905) all. 247 but the learned judges speak of succession opening on the death of the father which would not be right in the case of a mitakshara son. ram sing v. mussamat bhani i.l.r. (1915) all. 117 was a case of pure inheritance. in man singh v. musammat gaini i.l.r. (1917) all. 77 the learned judges took the view enunciated in abilak bhhagat v. bhekhi mahto i.l.r. (1895) cal. 864. these are all the cases.....

Judgment:

Seshagiri Aiyar, J.

1. The facts on which we have to give our decision are now undisputed. Gangadara was entitled to an Archaka service in a temple. He was sane at birth, but subsequently became insane. He had an only son, Subbiah. After the son attained majority, the father became insane and died in 1880 without recovering sanity. Subbiah, during this period was in sole possession of the Archaka Office. He predeceased his father. (It is said that he died in 1874). Subbiah left a widow Kuppammal who died in 1911. Gangadara's widow Pappammal died in 1912. Plaintiff sues as reversioner of Subbiah, the son. Defendants are the daughter and grandsons of Gangadara. They are sister and sister's sons of Subbiah. If the property belonged to Subbiah, the defendants being only the sister and sister's sons of the owner will be excluded by the plaintiff. If, on the other hand, Gangadara was the owner at the time of his death, the defendants as his daughter and daughter's sons would exclude the plaintiff. The principal question for decision is whether by Gangadara having become insane, Subbiah became the sole owner by survivorship to the exclusion of his father.

2. A subsidiary question is whether the two widows, mother-in-law and daughter-in-law enjoyed the property in such a manner and with such intention as to have prescribed for a half share each.

3. The main point for consideration is practically one of first impression. We have to examine the texts of Hindu Law for arriving at a decision. The case was argued with conspicuous ability on both sides as may be expected of the learned Vakils engaged on either side.

4. I shall first dispose of the extreme contention put forward by Mr. Venkatrama Sastriar for the respondent. He contended that unless insanity is congenital, there is no exclusion from inheritance. On this question there is direct authority. In Deo Kishen v. Budh Prakash I.L.R. (1883) All. 509 a Bench of five Judges, after examining the texts of Hindu Law decided that insanity need not be congenital. In Murarji Gokuldas v. Parvathibai I.L.R. (1876) Bom. 177 the same view was expressed. Before the Judicial Committee in Baboo Bodhnarain Singh v. Baboo Omrao Singh 13 M.I.A. 519 the position was taken for granjted that insanity need not be congenital. As against these decisions, we have Shanku v. Puttamma I.L.R. (1890) Mad. 289. The learned Judges one of whom was Mr. Justice Muthuswami Ayyar, very summarily dealt with the question. They do not quote the cases I have referred to, nor do they discuss the texts of Hindu Law. Raghava Mudaliar v. Narayanasami Mudaliar (1893) 4 M.L.J. 88 a later decision of this Court is not consistent with Shanku v. Puttamma I.L.R. (1890) Mad. 289. However, as there is a direct decision of this Court on the point, I shall deal with the texts relating to it. Mr. Venkatrama Sastriar conceded that the word in Manu's text, Chapter IX, Sloka 201 ' Unmatha ' (mad) was not qualified by the word 'Jathi' (from birth, I which governs (Andhha, vadhiran), the blind and the deaf. This is indicative of the view that other defects considered in the text need not be congenital. Mr. Justice Sadasiva Ayyar has held regarding blindness, mentioned in the same text that the rule is obsolete. I am unfortunately unable to apply that principle to the present case. Courts here and the Judicial Committee have regarded this injunction of law as a living principle. I must perforce give effect to it. The argument of the learned Vakil for the respondent was directed to showing that of the three disqualifications mentioned together under this head, namely, idiocy, insanity, and dumbness, the first and the last must necessarily be congenital; and that consequently, the middle one must have been included by the sage as partaking of the same character. In the first place, it is not clear that Makatva, (dumbness) would operate as an exclusion, only if it is congenital. It is true that it has been held in some cases that the text under discussion must be restricted to congenital dumbness. From a decided case to impute to the text writer that he regarded that dumbness can never be anything but congenital is not an easy process. The learned Vakil suggested that a dumbness that supervenes was not really what Manu meant; such supervening dumbness may not exclude the person from inheritance, but I am not prepared to say that it cannot be permanent, if it is not congenital. I must therefore hold that it has not been proved that all the three instances classed together by the author are examples of congenital defects. No doubt idiocy is not a supervening disease, We have therefore this situation. Three disqualifications are enumerated. One of them is prima facie congenital another need not be: the second is more often than not a Supervening disease. In these circumstances can it be contended that the authors by referring to them as a class intended to indicate that as these disqualifications ex-nessitate must relate to what exists from birth, it was superfluous to prefix them with the adjectival clause Jathi 'from birth,' as he did with regard to another category of disqualifications. I am not prepared to take this view. According to Mimamsa rules of interpretation, an adjective qualifying one clause should not by implication qualify a different clause. In this view, the word ' Jathi' does not govern ' Untnatha.' The learned Vakil for the respondent quoted the opinion of Sarbhadhikari at page 962 of his book in favour of his contention. The author does not express any definite conclusion. Nor Colebrooke's digest Vol. II 32 is a considered opinion. I am not prepared to disagree with the view of the Full Bench of the Allahabad High Court (Deo Kishen v. Budh Prakash I.L.R. (1883) All. 509 on this question.

5. I shall now deal with the main question. The portion relating to exclusion from inheritance finds a place in Chapter II, Section 10 of Mitakshara. It need hardly be mentioned that chapters, sections and placita owe their existence to Mr. Colebrooke's labours and not to any arrangement by the Commentator himself, Vignaneswara only makes a running commentary on the texts of Yagnavalkya which he quotes as he proceeds. The whole discussion, in this part of the subject, begins with a discussion of the meaning and attributes of Daya. I shall not attempt its definition here. The preamble to Section 10(which has been described as placitum 1) states, ' The author states an exception to what has been said by him respecting the succession of the son, the widow and other heirs, as well as the reunited parcener.' Then follows Yagnavalkya's text, Sloka 140. Then definitions of the various expressions in the text are given. Unmatha, 'A madman' is thus denned--'affected by any of the various sorts of insanity proceeding from air, bile, or phlegm, from delirium, or from evil spirits.' This is in placitum 2. Placita 3, 4 and 5 further explain the text. Then we come to placitum 6 'They are debarred of their shares, if their disqualification arose before the division of the property. But one already separated from his co-heirs is not deprived of his allotment. Placitum 7 refers to cases in which the disqualification subsequently disappears. The Commentator says that such cases will be regulated by the same principle by which sons born after a partition are provided with a share. Placitum 9 is important. The Commentator begins the examination of the next text of the Smrithi by this preamble. The disinherison of the persons above described seeming to imply disinherison of their sons, the author adds and then quotes the text which is in these terms: 'But their sons whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects' and comments on it in the 10th placitum onwards. Placitum 10, says, '' The sons of these persons, whether they be legitimate offspring or issue of the wife, are entitled to allotments, or are rightful partakers of stares, provided they be faultless or free from defects which should par their participation, such as im-potency etc.'' This corresponds to Manu, Chapter IX, Sloka 203. These are the only citations relevant for the purpose. A few general observations may be made here before examining the contention of the learned Vakils.

(a) The rules enunciated in this chapter are exceptions to the general principles of inheritance. Consequently they should be construed strictly. As far as possible, deducing by analogy a class of exceptions not clearly covered by the words should be avoided. The Hindu Law is no exception to the rule that it would lead Courts into a false position to hold that every rule must be given its logical extension. This caution is specially necessary in regard to suggestions to multiply exceptions.

(b) The rules are expositions, partly from usage and partly from an attempt to reconcile conflicting Smrithi texts, of the views of the Commentator. He found a state of society which demanded change. To satisfy this demand, while doing lip service to the inviolability of the written word, he not un-frequently takes liberty with the text. Therefore care should be taken not to confuse theoriginal injunction with its subsequent emendations. For example, the analogy of the after-born son is not in the particlular text of Yagnavalkya relating to this subject. What Vignaneswara did was to find a pretext for obviating an injustice. He found in Sloka 123 of the Smriti a rule relating to after-born sons. He introduced that as a good and reasonable solution of the problem relating to the recovery of normal health by the disqualified heir. This analogy in some cases has been pushed too far in some decisions and by some writers on Hindu law. It is at least doubtful whether Vignaneswara intended that this rule should be subjected to a searching examination by the importation of all the difficulties with which the rule about the share of the after-born son bristles.

(c) Ideas which we find imported into the discussion of this question by speaking of the inheritances 'Vesting of 'Being divested' ' of the succession opening on the death of the father &c.;,' which may have meaning when applied to Jeemutha Vahana's exposition of Hindu Law are not correctly applied to Vignaneswara's School of law. The reiteration by the latter that property is by birth should be carefully borne in mind. This last observation is specially applicable to dicta in some of the decided cases. It appears to me that in these decisions instances relating to survivorship have been considered as if they were cases of pure inheritance and of collateral succession.

6. Now I shall proceed to consider the two theories advanced-Mr. K. Srinivasa Ayyangar's contention amounts to saying that a son of a Mitakshara father has only the potentiality of taking a share, and that that potentiality is lost by his being subject to any of the disqualifications enumerated. The moment that the disqualification, patent or latent, exhibits itself, he must be put aside subject only to his having the right of maintenance; on his emerging free from the disqualification, the potentiality revives; and if he is alive at the time of partition in this reformed condition, he will take a share.

7. Mr. Venkatarama Sastriar's contentoin, on the other hand is that the son is a sharer or share-taker from the moment of his birth. He ceases to be the share-enjoyer when he is subject to the disqualification. His right is not lost, but is only in abeyance; and the provision for maintenance is not a deprivation of the inherent right but a beneficient provision for management of the property so long as the disqualification lasts.

8. A great deal has been said and can be said in favour of either of these contentions. I do not think that an examination of the reasons for the exclusion would help us much in deciding the question. I might briefly refer to it, as it has some bearing on the point. Visvarupa, a Commentator of the Yagnavalkya Smriti (and who wrote his dissertation before Vignaneswara) seems to have been very septic about the resonableness of the process of exclusion. He refutes the idea that the exclusion is based on the theory of sin in the previous birth, and cites instances to show that heirs of whom it can safely be predicted that they were sinners are among those to whom unqualified inheritance is given. He also rejects the theory that inability to perform religious rites in this birth might have been the ground for exclusion. Here again he quotes instances. His view seems to be 'We find the exclusion there and we must perforce accept it.' If the exclusion is not based on original sin or subsequent incapacity to offer oblation and the like, the suggestion that it was due to a belief in the inability of the heir to manage temporal affairs appears more plausible. Very likely the rule is an outcome of a hazy notion that the property should be preserved for the disqualified person by those who are related to him. The law as to guardianship has developed much in later days. Even now it is not perfect. It looks as if the old law-givers by providing for maintenance did not intend to deprive the heir of his inheritance, but only to provide for its management during incapacity.

9. Mr. Srinivasa Ayyangar in analysing the placita relating to the periods of partition contended that the right to a share is only predicated on the contingency of the heir existing in a normal condition at the time partition is made. It is true that if the sharer dies undivided before the actual partition takes place, the property will be distributed as if he was not born at all. In answer to the suggestion that this theory is inconsistent with giving rights to his son or grandson in the father's share, the learned Vakil argued that these persons are specially mentioned. It seems to me that the rule in placitum 6, Section 10 that a person is excluded, if he is disqualified at the time of partition, is not a pronouncement that the right ripens and is capable of enforcement only then, but a principle indicating who all should be allotted shares at the division. The principle of right by birth which Vignaneswara insistently enunciates would become nugatory if a bare potentiality is assigned to that right.

10. The other view receives considerable support from Saraswati Vilasa, a treatise which is a binding authority in this part of India. The author quotes Manu in placitum 148 and then comments on it in placita 149 to 157. He says 'From this coupling together, it follows that they have shares, but that they should, though having shares, be supported as they could marry.' The view is that if any of the excluded persons is capable of marriage and of begetting children, their shares should be managed for their benefit and should be given maintenance. This seems to follow from Manu, Chapter IX, Sloka 203. The professors of the Science of Eugenics may rightly protest against this tacit assumption by the ancient sages that an insane person can marry; but so long as the State does not prohibit such marriages the law cannot be abrogated. The ancient law-givers even provided for the begetting of children on the wife of the incapacitated person. They seem to have been as anxious for giving facilities for the procreation of children, as some of the sanest publicists in these days and the heads of states are, after the Great war, to recognise and encourage the rearing up of offspring however begotten. However that may be, the view of the author of Saraswathi Vilasa is more in consonance with the view that the right exists but is only obscured for the time being. Mr. Srinivasa Ayyangar suggested that the parenthetical clause about capacity for marriage suggested by the author of the Saraswati Vilasa does not destroy the root doctrine that the right is enforceable only, if and when there is full mental capacity at the date of partition. But the author distinctly says that the share should be managed because of the possibility of marriage, thereby indicating that it exists and is not lost altogether. My conclusion, therefore is that the right comes into existence at birth, subsists all through, although it is incapable of enforcement at the time of partition, because of the disqualification then existing.

11. Mr. Srinivasa Ayyangar drew our attention to the statement in Steel's Law of Custom in which the author says that the custom is to regard the insane man as entitled to a share, although he is not given the enjoyment of it.

12. Coming to the decided cases, in Ragava Mudali v. Narayanaswamy Mudaliar (1893) 4 M.L.J. 88 there is an obiter dictum to the effect that if a Hindu father dies leaving ancestral property and a son insane at the time of his death, the son is not entitled to take the property. The dictum was not necessary for the case and curiously enough, Shanku v. Puttamma I.L.R. (1890) Mad. 289 where a contrary view was taken was not considered in this judgment. In this latter case which relates to the inheritance of an Aliya Santana family in South Kanara it was decided that the surviving member who was a female and was insane was the owner of the property. I have dissented from this judgment in so far as it relates to the question that insanity should be congenital. Krishna v. Sami I.L.R. (1885) Mad 64. does not affect this case directly. That was a case relating to a right of the sons of a deaf and dumb member. It was held that the fact that the father was disqualified and that the sons were born after the death of their grandfather did not disentitle them to take their father's share. The learned Judges after examining the texts seemed inclined to hold that property vested on the birth of the heir. However the present question was not considered in that case. These are all the Madras authorities. There are some cases in Calcutta which are not quite reconcilable with each other. The earliest of them is in Balgobinda v. Lal Bahadur (1851) 10 SDA 244, 18 ID O.S. 941 The case related to the lunacy of one Ramsahai. He seems to have given his name to a number of cases on this point. It is clear from this case that a committee was appointed to manage his share. This decision impliedly supports the view that insanity does not operate as deprivation of the birthright. The next case in which also the insanity of the same individual was in question is Bam Sahye Dhukkhut v. Lala Laljee Sahye I.L.R. (1881) Cal. 149. There are conflicting dicta in that judgment which render it valueless as authority. The suit was brought to recover property on behalf of the lunatic. The learned Judges while holding that he had a right to the property refused to disturb the alienees on the ground that if he was to recover the property, he would not be in a position to have it partitioned. Another decision in that same volume relating to the insanity of the same individual is Ram Soonder Boy v. Ram Sahye Bhugut I.L.R. (1882) Cal. 919. Both these cases were considered in Abilakh Bhagat v. Bhekhi Mahto I.L.R. (1895) Cal. 864 which again was a case relating to the insanity of the same individual; it was held that the right to property existed although the right to its enjoyment was unenforceable. Princep, J., was of opinion that the earlier decisions in VIII Calcutta were not good law. These are the Calcutta decisions, In Allahabad there is a direct decision in Tirbeni Sahai v. Muhammad Umar I.L.R. (1905) All. 247 but the learned Judges speak of succession opening on the death of the father which would not be right in the case of a Mitakshara son. Ram Sing v. Mussamat Bhani I.L.R. (1915) All. 117 was a case of pure inheritance. In Man Singh v. Musammat Gaini I.L.R. (1917) All. 77 the learned Judges took the view enunciated in Abilak Bhhagat v. Bhekhi Mahto I.L.R. (1895) Cal. 864. These are all the cases on the point.

13. None of them deals with the exact question we have to decide. The dicta in some of them however support the view I have taken.

14. The next point which Mr.' K. Srinivasa Ayyangar pressed upon us is that the Lower Appellate Court has not given a correct finding on the question of prescription which we asked him to decide. The question arises in this way After the death of Subbiah, the son, his widow and the wife of Gangadara were doing the Puja service in the temple. There is evidence on both sides which indicates that they were enjoying the worship in equal turns. The District Judge has not discussed this evidence. For example there is the written statement, paragraph 3, which suggests this; paragraph 4 also may be referred to. There are Exhibit I and Exhibits III, T and J. There is the deposition of D. W. 1. Although there was no issue about prescription in the First Court as the question there was as to who died first, whether Gangadara or Subbiah, the point is one which does require adjudication having regard to the view I took of the case. I must therefore reverse the decree of the District Judge and remand this appeal to him for disposal on the question whether the widow of Subbiah had prescribed for a half share in the property after the death of her husband, and if so, whether she acquired a right to it at the time of her dexth. It may be necessary to take fresh evidence in the case because it is possible that the enjoyment of Subbiah's widow was in lieu of maintenance or it may be that Gangadara's wife out of affection allowed her to enjoy the turn of worship. These matters have not been elucidated because there was originally no issue on this question. With these observations I must remand the case for disposal to the Lower Appellate Court. The parties will pay and receive proportionate costs in this Court and the costs in the Lower Appellate Court will abide the result.